The Rape of Constitutionality in Plateau

culled from GUARDIAN, May 20, 2004

THE suspension of the Governor and House of Assembly of Plateau State and their replacement temporarily by an Administrator by President Olusegun Obasanjo are the greatest and most brazen illegality committed by any government in Nigeria, colonial, military or civilian.

Emergency powers comprise two distinct powers, viz (i) power to declare a state of emergency; and (ii) power to make laws and to execute them with respect to matters within exclusive state competence in normal time, and to overstep, with some exceptions, the limitations on power arising from the constitutional guarantee of fundamental rights in chapter IV. Section 305 of the 1999 Constitution, relied on by President Obasanjo for his action in Plateau State, grants only the first power, but not the second; it only empowers the President to declare a state of emergency in situations there specified. It is not intended for present purposes to go into the question whether or not the state of emergency in Plateau State was validly declared under section 305.

A state of emergency validly declared under section 305 does not by itself, bring into play the second power. It is a fundamental principle of the Rule of Law that executive acts must be authorised by law, at any rate, insofar as they affect the rights and interests of an individual, and that the Executive is not the one to confer the necessary legal authorisation on itself. The principle is well established by many authorities. As far back as 1921 in the celebrated case, Eshugbayi Eleko v. Government of Nigeria, the Privy Council applied it to invalidate the deportation of the then Oba of Lagos by the colonial Governor of Nigeria without authorisation by law, which as the sole legislature for the country at the time, he could have conferred on himself by simply issuing an Ordinance, but which he failed to do, relying instead on what he called his inherent authority as the Executive. In a judgement that has become a great constitutional landmark, the Privy Council, speaking through Lord Atkin, said that the Executive "can only act in pursuance of the powers given to him by law."

The section in the 1960 and 1963 Constitutions (section 65 and 70 respectively) authorising the declaration of a state of emergency also empowered Parliament to make "laws for Nigeria or any part thereof with respect to matters not included in the Legislative Lists as may appear to Parliament to be necessary or expedient for the purpose of maintaining or securing peace, order and good government during any period of emergency" (section 65(1) 1960; section 60(1) 1963; emphasis supplied.)

Pursuant to the power conferred by this provision, Parliament enacted the Emergency Powers Act 1961 authorising the Governor General-in-Council to make "such regulations as appear to him to be necessary or expedient for the purpose of maintaining or securing peace, order and good government in Nigeria, or any part thereof during any period of emergency." Altogether 12 regulations were made by the Governor General-in-Council under the Act. Of these the most far-reaching was the Emergency Powers (General) Regulations, 1962, which empowered the Prime Minister to appoint an Administrator for Western Nigeria (the emergency area.) The Administrator was authorised by the Regulations to administer the government of the Region, with power to legislate by means of orders for the peace, order and good government of the Region, and with full executive powers. He then suspended the Regional Governor, Premier, Ministers, and House of Assembly.

The Emergency Powers Act 1961 and the Emergency Powers (General) Regulations 1962 clearly went beyond what was contemplated by the enabling provision in Section 65(1) of the 1960 Constitution; they were a perversion of power, but they at least provided some measure of legal authorisation and basis for the appointment of the Administrator by the Prime Minister, and the suspension of the Regional Governor, Premier, Ministers and House of Assembly by the Administrator. The Act and the Regulations made under it lapsed by effluxion of time under Section 65(2) of the 1960 Constitution (section 70(2), 1963) that "any provision of law enacted in pursuance of this section shall have effect only during a period of emergency," so that they are not in force today as existing laws under Section 315 of the 1999 Constitution. They are not therefore reproduced in the laws of Nigeria 1990. Even supposing them to be existing law, they will be inconsistent with Section 11(4) and (5) of the 1999 Constitution, quoted below.

With the experience of the perversions of 1962 in mind, Section 305 of the 1999 Constitution (reproducing Section 265, 1979 Constitution) gives the Federal Government no emergency powers, legislative or executive, exercisable during a state of emergency declared under its provisions. It (i.e. Section 305) omits completely the power in Section 65(1) of the 1960 and Section 70(1) of the 1963 Constitution. The only provisions relevant upon the points are those in Section 11(3), (4) and (5) of the 1999 Constitution (same section number in the 1979 Constitution) which, again significantly, make no reference at all to an emergency declared in terms of section 305 (section 265, 1979 Constitution).

These provisions need to be reproduced in their precise wording in order to underline their underlying aim of avoiding the evil of perversion made possible by the 1960 and 1963 Constitution. Section 11:

(3) During any period when the Federation is at war, the National Assembly may make such laws for the peace, order and good government of the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List as may appear to it to be necessary or expedient for the defence of the Federation"

"(4) At any time when any House of Assembly of a State is unable to perform its functions by reason of the situation prevailing in that state, the National Assembly may make such laws for the peace, order and good government of that state with respect to matters on which a House of Assembly may be necessary or expedient until such time as the House of Assembly is able to resume its functions, and any such laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State.

Provided that nothing in this section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office."

"(5) For the purposes of subsection (4) of this section, a House of Assembly shall not be deemed to be unable to perform its functions so long as the House of Assembly can hold a meeting and transact business." (emphasis supplied)

The severest of the restrictions on the powers of the Federal Government under these provisions is that where a situation of an abnormal extraordinary nature is confined to the territory of one State and does not extend beyond its boundaries, then, even although a state of emergency has been declared in the state in terms of section 305, the National Assembly is not to assume power to make laws on matters within exclusive state competence unless the State House of Assembly is "unable to perform its functions by reason of the situation prevailing in that state" (section 11(4) - i.e. the situation prevailing in the state independently of, not one brought about by, a declaration of an emergency. Further, "a House of Assembly shall not be deemed to be unable to perform its function so long as the House of Assembly can hold a meeting and transact business" (section 11(5). Again, what is envisaged is inability to perform its functions arising from the situation prevailing in the State independently of, but not one brought about by, a declaration of an emergency.

Finally, the removal of a State Governor from office by reason solely of an emergency situation prevailing in the State, whether or not an emergency is formally declared under section 305, is completely and unequivocally procluded by the proviso in section 11(4), which declares that "nothing in this section shall be construed as conferring on the National Assembly power to remove the Governor or the Deputy Governor of the State from office." The Governor remains in office during such period with his executive powers undiminished, since by section 11(4) any "laws enacted by the National Assembly pursuant to this section shall have effect as if they were laws enacted by the House of Assembly of the State." He is the rightful authority to execute such laws by virtue of the provision in section 5(2) that the executive powers vested in him shall extend to "the execution and maintenance of the Constitution (and) all laws made by the House of Assembly." And if the National Assembly cannot, in the exercise of its power to make law under section 11(4), remove a State Governor, it cannot by law authorise the President to do so. The President has no inherent power to remove or suspend a Governor, anyway.

It follows that a State Governor elected into office under the 1999 Constitution cannot be removed from office by reason solely of an emergency validly declared under section 305 of that Constitution; in order words, there is nothing in the provisions of the 1999 Constitution relating to an emergency that can cause or be used to make a state Governor to "cease to hold office" within the meaning of section 180 of that Constitution.

All the military governments that have ruled Nigeria observed the Rule of Law at least to the extent of enacting laws (Decrees or Edicts) as a basis for their executive actions, especially executive actions affecting the rights or interests of individuals. There was seldom, if ever, an executive action of the military government not backed by law, a Decree or Edict, made normally prospectively, but sometimes retrospectively.

The suspension of the elected Governor and House of Assembly of Plateau State and their replacement by an Administrator by the democratic government of President Obasanjo without authorisation by law must rank as perhaps the greatest tragedy to befall the Rule of Law in Nigeria.`

Professor Nwabueze (SAN), a constitutional lawyer, is a member of The Patriots`